Martin’s Big CES AnnouncementJanuary 9, 2008
Everyone loves to do big announcements here at the Consumer Electronics Show, and FCC Chair Kevin Martin is no exception. So Martin closed his on stage conversation with
Consumer Electronics Association President Gary Shapiro that the FCC will investigate Comcast’s “network management” practice. For those just tuning in, Comcast claims it was a “reasonable network practice to (a) interfere with users trying to upload content to Bittorrent; (b) lie about it when asked point blank, and accusing those who made the allegations of deliberately spreading vile and slanderous falsehoods; (c) instruct their staff to lie about it to customers, until; (d) the evidence became so overwhelming that Comcast dropped from outright lying that they never interfere with user traffic to the modest prevarication that they merely “delay” uploads.
Like most CES announcements, Martin’s statement lacks particulars, giving rise to the usual mix of cautious optimism, cynicism, speculation, and confusion. Here are the critical quotes:
I told the staff they should investigate any kind of complaint that comes to them about anything being blocked,'' Martin said.We're going to investigate that and make sure no one's being blocked and no consumer's being blocked from a particular type of access in a discriminatory type of way.''
From the Associated Press “The question is going to arise: Are they reasonable network practices?” Martin said Tuesday. “When they have reasonable network practices, they should disclose those and make those public.”
In fairness to Martin, FCC rules tightly restrict what he can say about a pending matter. But these two quotes leave a heck of a lot of range for FCC vehicles and outcomes. The first quote would appear to reference the complaint and Petition for Declaratory ruling we filed back in November. But the FCC could also spin it off from the pending Notice of Inquiry on Broadband Industry Practices, or open a proceeding around Vuze Petition for Rulemaking. The second quote appears to phrase this as two interrelated questions: what is a “reasonable” practice, and do you have to disclose it even if it is “reasonable?”
The vehicle matters a great deal, and impacts the likely answers to these two questions. A complaint (such as we filed) is a closed proceeding in which the FCC does investigatory stuff and then pops out a verdict. A Petition (whether for Rulemaking or Declaratory Ruling) must get noticed in the Federal Register and give all interested parties a chance to comment. If the FCC launches its own proceeding – either as a spin off or by taking elements of the various complaints and petitions before it now, the FCC can define its own questions and make preliminary conclusions to shape the outcome.
It also makes a difference whether or not Comcast gets fined, because that can only happen in a complaint. Speaking as one of the folks who worked on the complaint, the question of whether the FCC will use its authority to fine violators for violation of its 4 principles matters. Why? Because if companies risk big fines for screwing around with user access (and lying about it), they will be much more likely to approach such “network management” cautiously than if the only risk of getting caught on a first offense is a finger wagging admonition not to do it again. While I expect Comcast and its supporters to argue that it is unfair to “punish” Comcast when the law remained “unclear,” I can only respond that this is one of the consequences of relying on after-the-fact remedies and complaint adjudications rather than having clear rules.
To sum up, I’m glad to hear Martin’s announcement and you can mark me in the “cautiously optimistic” camp. At the same time, we all need to recognize that a lot remains unclear, we need to get more details, and who knows how it will actually play out on release. But that pretty much sums up any big announcement for CES.
About Harold Feld
Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”